SECRETARY FOR JUSTICE v. SENG MING TA, PETER

HCMA181/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 181 OF 1998

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J U D G M E N T

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1. This is an appeal by way of case stated brought by the Secretary for Justice under the provisions of Section 105 of the Criminal Procedure Ordinance. It arises from the acquittal on 4 December 1997 of the respondent, Peter SENG Ming-ta by Mr Eddy YIP, permanent magistrate, sitting at Western Magistracy in respect of the following charge:

"Statement of Offence Failing to comply with the terms of a notice to furnish information according to section 14(4) of the Prevention of Bribery Ordinance Cap. 201.

Particulars of Offence SENG Ming-ta on whom a notice under section 14(1)(a) of the Prevention of Bribery Ordinance was served on 27 March 1997 on or about 19 April 1997 in Hong Kong without reasonable excuse failed to comply with the terms of the said notice, namely to furnish a statutory declaration to an officer of the Independent Commission Against Corruption within the time specified therein"

2. The point of law in issue is whether the section 14(1)(a) Prevention of Bribery Notice was validly served on the respondent on 27 March 1997.

3. In the case, the magistrate has posed the following three points of law for my resolution:

1. Did I err in law in finding that the words, "shall be served on the person to whom it is addressed in section 14(3) of the Prevention of Bribery Ordinance represent a contrary intention for the purpose of section 2(1) of the Interpretation and General Clauses Ordinance resulting thereby in section 8 of that ordinance having no application to section 14(3)?

2. Did I err in law in finding that for there to be a valid service by post or by registered post in accordance with section 14(3) of the Prevention of Bribery Ordinance there must therefore be proof of a receiving act by the addressee of a registered postal article or by his authorised agent?

3. Did I err in law:

(a) In my construction that the deemed service provision of section 8 is rebuttable, and if it is

(b) In finding that there was evidence capable of amounting to rebuttal evidence?

4. The magistrate made the following findings of fact.

1. In April of 1994 the Independent Commission Against Corruption started an investigation into offences suspected to have been committed by the respondent contrary to the Prevention of Bribery Ordinance. On 17 March 1997 he was arrested and released on bail while further investigations were carried out by the ICAC.

2. On 21 March 1997 a valid section 14(1)(a) notice directed to the respondent was signed by Mr KWOK Man-wai, the Deputy Commissioner of the ICAC. On 22 March 1997 an attempt was made to serve the notice on the respondent at the office of his legal representative. That attempt failed.

3. On 25 March the notice was put in an envelope by an ICAC officer, Mr C F CHAN. He sealed the envelope, typed the name and the last known address of the respondent: Flat A, 27th Floor, Block 2 Clovelly Court, 2 May Road, Hong Kong on it, and instructed another ICAC officer, Miss C S MA to send it by double registered post. She made arrangements to do so and affixed a pink advice of delivery card on the back of the envelope. She pre-paid the postage using a franking machine.

4. On 25 March 1997, the envelope with the notice inside was taken to Harcourt Road Post Office. The post office staff there took over the envelope and arranged for its delivery in accordance with double registered post procedures. They completed a registered item delivery receipt, No. 0133807 for the envelope.

5. On 27 March 1997, a postman, Mr T C YEUNG, stuck that receipt to the envelope and entered the number 759349 on it. He then took the envelope with both annexures affixed to it to the address on the envelope.

6. There a woman opened the wooden door and the iron grille to the premises and received the envelope, still with its annexures affixed to it, from Mr YEUNG. Shortly after, she handed the registered item delivery receipt back to Mr YEUNG. It bore a handwritten initial. Mr YEUNG returned the registered item delivery receipt to the post office. He did not take back the pink advice of delivery card from the woman.

7. The magistrate found that the delivery procedures adopted by the post office employees, up to the moment of handing over the envelope with its annexures to the woman, complied with those prescribed for both double registered mail and registered mail. He also found that double registered mail is a variant form of registered mail, in that in addition to the registered post procedures the recipient of the item is asked to acknowledge receipt on the pink advice of delivery card which should then be sent to the sender of the item to inform them that receipt had been acknowledged.

8. On either 27 or 28 March 1997 someone detached the pink advice of delivery card from the envelope and put both the envelope and the card into different post boxes. They were recovered from these by postmen in the course of their rounds.

9. On the back of the envelope the handwritten message, "We refuse to accept this letter", "letter" was then crossed out and "service" written in - "please return it to sender" had been written. The magistrate found that there was no direct evidence that the respondent had written this himself or had authorised another person to write those words on the back of the envelope. On the returned pink advice of delivery card there was a handwritten initial in the space marked in both Chinese and English, "signature of the addressee".

10. On 4 and 7 April further unsuccessful attempts were made by the post office to deliver the envelope to the address on the envelope. On 4 April a woman answered the door, she waved her hands and refused to take the letter from the postman. On 7 April no one answered the door.

11. Later, as there was no indication on the envelope who the sender was, post office staff opened the envelope to find out the sender's name. Having done so, they sealed the envelope with post office labels and returned it to the ICAC.

12. Neither Mrs WOO Cho-kam, the ICAC officer named in the notice as the person to whom the respondent is directed to furnish the required information, nor any other ICAC officer has ever received the statutory declaration required by the notice from the respondent.

5. The magistrate found as a fact that the respondent had not complied with the terms of the notice within the time specified in it and that there was no evidence before him of the respondent having a reasonable excuse for failing to do so. However, the magistrate found that the prosecution had failed to prove that the respondent had returned both documents himself or directed another to do so. He concluded that he could not therefore be satisfied beyond a reasonable doubt that the section 14(1)(a) notice had been personally served on the respondent and acquitted him of the charge.

6. As to the magistrate's first question, "Did I err in law in finding that the words 'shall be served on the person to whom it is addressed in section 14(3) of the Prevention of Bribery Ordinance'" represent a contrary intention for the purposes of section 2(1) of the Interpretation and General Clauses Ordinance resulting thereby in section 8 of that ordinance having no application to section 14(3)?"

7. Section 14(3) of the Prevention of Bribery Ordinance provides:

"A notice under subsection (1) shall be served on the person to whom it is addressed either personally or by registered post addressed to his last known place of business or residence."

8. Section 8 of the Interpretation and General Clauses Ordinance provides:

"Where any ordinance authorises or requires any documents to be served or any notice to be given by post or by registered post, whether the expression 'serve' or 'give' or 'send' or any other expression is used, the service or notice shall be deemed to be effective by properly addressing, prepaying the postage thereon and dispatching it by post or by registered post as the case may be to the last known postal address of the person to be served or given notice. And unless the contrary is proved such service or notice shall be deemed to have been effected at the time of which the document or notice would be delivered in the ordinary course of post."

9. Mr Robert LEE, for the Secretary for Justice, submits that the phrase, "shall be served on the person to whom it is addressed" specifies the legal requirement for activating the mandatory effect of the notice, namely, that the notice must be served, but not the means of fulfilling that requirement. As to the means, section 14(3) of the Prevention of Bribery Ordinance gives the ICAC a choice. They may serve the notice on a recipient personally or, they may serve it on him by registered post addressed to his last known place of business or residence.

10. The Secretary for Justice submits that there is nothing in the other provisions of the Prevention of Bribery Ordinance, or in the Interpretation and General Clauses Ordinance, capable of dis-applying the deeming provisions of section 8 of the Interpretation and General Clauses Ordinance, in relation to section 14(3). The answer to the first question must be "Yes".

11. The respondent, however, argues that the word "shall" in section 14(3) of the Prevention of Bribery Ordinance means that it is mandatory to follow the provisions as to service. It must be on the person to whom the notice is addressed, either personally or by registered post. The plain and ordinary meaning requires the prosecution to prove that the notice was actually served on that person, whichever of the two methods of service is used.

12. Section 8 of the Interpretation and General Clauses Ordinance is a deeming section. It provides, among other things, that the service of a notice by registered post is deemed effected upon the proof of certain matters. It is conceded by the respondent, as found by the magistrate, that the prosecution proved these matters. However, section 8 does not say that this deeming provision overrides any and all specific provisions in an ordinance in respect of service.

13. The contrary is the case as section 2(1) of the Interpretation and General Clauses Ordinance which provides:

"Save where the contrary intention appears either from this ordinance or from the context of any other ordinance or instrument the provisions of this ordinance shall apply to this ordinance and to any other ordinance in force, whether such other ordinance came or comes into operation before or after the commencement of this ordinance and to any instrument made or issued under or by virtue of any such ordinance."

- makes it clear that the provisions of the Interpretation and General Clauses Ordinance apply save where the contrary intention appears from the context of any other ordinance. And it is trite law that general provisions do not override specific provisions.

14. The respondent says the magistrate was correct in his interpretation of section 14(3) of the Prevention of Bribery Ordinance, in that unless and until the prosecution proves that the notice was served on the person to whom it is addressed by registered post, then despite section 8 of the Interpretation and General Clauses Ordinance effective service has not been proved. The answer to the first question must be "No".

15. As to the magistrate's second question, "Did I err in law in finding that for there to be valid service by post or by registered post in accordance with section 14(3) of the Prevention of Bribery Ordinance there must therefore be proof of a receiving act by the addressee of a registered postal article or by his authorised agent?"

16. The Secretary for Justice argues that there is no need for the prosecution to prove a receiving act by the addressee or his authorised agent in order to activate the deeming effect of section 8 of the Interpretation and General Clauses Ordinance.

17. The prosecution's case at trial was that although there was no direct evidence that the respondent, or an authorised agent of his, had received the letter at the time of delivery, there was a receiving act by a person inside the addressee's premises - the woman taking possession of the envelope from the postman on 27 March.

18. Mr C Y WONG, S.C., the respondent's counsel at trial and in this appeal, referred the magistrate to two authorities, arguing that they supported the view that to active the deeming effects of section 8 of the Interpretation and General Clauses Ordinance a receiving act must be proved. The Secretary for Justice submits that they in fact support the prosecution's case.

19. The first case was R v County of London Quarter Sessions Appeals Committee ex parte Rossi [1956] 1 QB 682. With regard to service by registered post Denning LJ said at page 692 lines 2 to 6:

"The merit of registered post in this regard is that the postman will only deliver the letter to the person to whom it is addressed or to someone who will take responsibility for seeing that he gets it. Otherwise he will return it to the sender, who will thus get to know, sooner or later, if the letter is not received ... it was essential for counsel for Mrs Minors to prove service of the notice in accordance with S.3(1) of the Act. He had to prove that the clerk of the peace had in due course given Mr Rossi notice of the date, time and place of the hearing. This could be done by proof that a notice had been sent to him in good time by post in a registered letter which had not been returned, for it could then be assumed that it had been delivered in the ordinary course of post; see S.26 of the Interpretation Act 1889."

Morris LJ echoed Denning LJ saying at page 697, lines 26 to 32:

"It was therefore entirely proper to send a notice to Mr Rossi by registered post. Applying the provisions of section 26 of the Interpretation Act, since no contrary intention appears from the Act of 1933, the sending of the notice to Mr Rossi was deemed to be effected by properly addressing, prepaying and posting the letter which contained the document."

In Rossi, service of the notice was held to be ineffective. The Secretary for Justice argues that the language used by the English Court of Appeal to describe the evidence which rebutted the deeming effect of section 26 of the English Interpretation Act 1889 illustrates the nature of the act which is sufficient to activate the deeming provisions of section 8 of the Interpretation and General Clauses Ordinance, and, conversely, the kind of matters which can amount to rebuttal evidence.

20. Denning LJ said at page 692, third paragraph:

"But once it appeared that the letter had been returned undelivered, then it was quite ...(reads) of the date, time and place of the hearing."

Morris LJ said at page 697, lines 35 to 38:

"But here the contrary was proved. It was proved, not merely that the letter was not delivered in the ordinary course of post, but that the letter was not delivered at all."

And at page 698, lines 20 to 21,

21. "Though a letter was sent it did not arrive."

Parker LJ said at page 700, lines 14 to 16:

"It was apparently sent on September 21, and was returned marked 'no response' as on September 22."

22. The Secretary for Justice says that the language used by the English Court of Appeal shows that, in order to activate the deeming provision in section 8 of the Interpretation and General Clauses Ordinance, it is only necessary for the prosecution to prove that the notice arrived at the premises of the addressee. It is not necessary for the prosecution to prove that the notice passed into the hands of the addressee or his authorised agent, or came to his knowledge. On this point see also Thomas Bishop Ltd v Helmville [1972] 1 All ER 365, at page 369, lines g to h, and Attorney General v WONG Chi-wai [1996] 4 HKC 777 at pages 780H to 781G.

23. The Secretary for Justice accepts that the deeming provisions will be rebutted where there is evidence that the notice has been returned undelivered by the post office, as was the case in Fok Chun Hung v Lo Yuk Shi [1995] 2 HKC 648, the second authority cited by a Mr WONG at trial. Or if there is credible evidence adduced to show that although the notice arrived at the premises it was not attended to due to a good and sufficient reason. For example, that the addressee was out of town for the relevant period, for which see Moody v Godstone Rural District Council [1996] 2 All ER 696.

24. But, says the Secretary for Justice, the onus of rebutting the presumption is cast upon the defendant. It cannot be rebutted where the facts show that the notice has arrived at and gone inside the premises of the person to be served and then returned to the post office by some one. The answer to the second question must be "No".

25. In answering the Secretary for Justice Mr WONG again referred to Rossi and Fok Chun-Hung. He also put great reliance on Forward v West Sussex County Council and others [1995] 4 All ER 207, where Sir Thomas Bingham, the Master of the Rolls, when dealing with a similar provision to section 8 of the Interpretation and General Clauses Ordinance had said that the general principle is that proceedings must be brought to the actual notice of a defendant unless this is shown to be impracticable. The Master of the Rolls' actual words are at page 212f to 213a:

"The issue which we now have to resolve arises on the construction of Ord 10, r 1 (2)(a). Is service duly effected if the proceedings are duly sent by ordinary first-class post to the defendant at his usual or last known address and delivered at that address? The plaintiff argued that it is. If judgment were entered in default following such service and the defendant were able to show that he had never received the proceedings and so had had no opportunity to defend, he would have strong grounds for asking that the judgment should be set aside. But that would not impugn the validity of the service as service, only the fairness of allowing the judgment to stand. Counsel for the fourth defendant challenged this approach. It was a cardinal rule of procedure that a party should not in ordinary circumstances be answerable for a claim of which he had had no notice. It he could show that the proceedings, although sent to and delivered to the last of his addresses known to the plaintiff, had not in fact come to his notice then good service had not been effected. The real test was one of notice not delivery. Section 7 of the Interpretation Act 1978 lays down the general rule governing references to service by post. It provides: 'Where an Act authorizes or requires any document to be served by post (whether the expression "serve" or the expression "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.' This refers to the service of all documents, not just originating process, and the presumption applies 'unless the contrary intention appears' and 'unless the contrary is proved'. Assuming that this provision in principle applies, we have no doubt that effect must be given to rules of court unless they are in strict accord with the section, because it they are different a contrary intention appears."

At page 214c:

"... in the case of proceedings sent by post where the letter had been returned to the plaintiff undelivered to the defendant as addressee there would not have been good service on either argument; even on the plaintiff's argument it would have been necessary to show delivery."

At page 214e:

"In so far as assistance is gained from general statements of principle, we would prefer to rely on the last two cases, which reflect the salutary principle that proceedings must be brought to the actual notice of a defendant unless this is shown to be impracticable."

And at page 214 f to g:

"It would be surprising if the alternatives to personal service treated as irrelevant what personal service would guarantee, that the defendant had notice of the proceedings. We are satisfied this is not the case. The alternatives to personal service are allowed because they found a good working presumption (rebuttable, but still a good working presumption) that they will bring the proceedings to the notice of the defendant."

26. Here, says Mr WONG, there was no evidence that the envelope had been opened before it was put into the post box. The magistrate found as a fact that it was the post office who had opened it, hence, the respondent could not have known of its contents. A person cannot comply with a notice unless and until he is aware of its terms. Therefore the principles in Forward apply and in the circumstances the answer to the second question must be "Yes".

27. Insofar as proof of a receiving act by the addressee is concerned it is doubtful whether the words "on the person" permit the service to be on an authorised agent of that person. Section 14(3) creates a criminal offence with a maximum fine of $20,000 and one year's imprisonment. The words used, "on the person" are clear. They must not be interpreted to extend their meaning to include "on the authorised agent of the person" to whom it is addressed. And in any event, there was no evidence that the woman who took possession of the letter was authorised to do so by the respondent.

28. As to the magistrate's third question:

"Did I err in law:

(a) in my construction that the deemed service provisions of section 8 is rebuttable, and if it is

(b) in finding that there was evidence capable of amounting to rebuttable evidence?"

29. Both the Secretary for Justice and the respondent agree that the deemed service provision is rebuttable. Clearly, they are right, and it is not necessary to discuss that question further. The answer to the first question in question 3 is "No".

30. In relation to the second question in question 3, in paragraph 10(2) of the case in his findings the magistrate said:

"The evidence of the unsuccessful attempt to deliver Exhibit P1 after 27 March was evidence to the contrary to rebut the deemed postal service on 27 March."

31. The Secretary for Justice says that this is clearly wrong. The only possible evidence in rebuttal is the return of the envelope and the pink advice of receipt card to the post office after they had been received by a woman at the respondent's address and on the authorities, this evidence cannot in law be rebutal evidence.

32. The message in the handwritten annotation on the back of the envelope is specific. It could only have been put there by someone who had opened the letter himself, or believed it contained a section 14(1)(a) notice issued by the ICAC; thought that the better course was to return it to the sender rather than destroy or ignore it; knew that the delivery of the letter was an effective service on him, and felt the need to expressly state on the envelope that he refused to accept service. The Secretary for Justice submits that given the timing of the creation of the annotation and the circumstances described above, the only person who had the background and knowledge to write those words and the personal interest and motive to refuse to accept notice, and who in fact returned the envelope and the card to the post office - or caused their return, is the respondent himself. That the Secretary for Justice says, is the only reasonable inference to be drawn from the evidence.

33. This is much more than a case of the notice merely arriving at his address, which is the minimal act capable of activating section 8 of the Interpretation and General Clauses Ordinance. The Magistrate, by finding otherwise, permitted the legislative intent behind section 8, which is that service of a section 14(3) notice can be made irrespective of the willingness of the party to be served to accept it, to be defeated at the option of the respondent. Here there was a clear intention on the part of the respondent to evade service, and obstruct a lawful exercise by the ICAC officers of their statutory powers of investigation. Had the respondent wished to challenge the notice his proper course was to initiate judicial review proceedings rather than to purport to refuse to accept service. The answer to the second question must be "Yes".

34. The respondent argues that the magistrate's findings in respect of the delivery, summarised earlier in this judgment, are more than sufficient to rebut the presumption. In particular, the evidence that the post office decided that the letter was undeliverable and returned it to the ICAC, and that in consequence the ICAC issued fresh notices on 19 May, one month after the expiry of the specified period in the first notice and under the same section of the Prevention of Bribery Ordinance, and in identical terms to the original notice except for the dates, must be evidence which shows that the appellant's contention that the notice was effectively served on the respondent, is wrong and unsustainable.

35. The respondent, through Mr WONG, says that the second question in question 3 must be "No".

36. On the first question I am with the Secretary for Justice. Section 14(3) gives the ICAC two options: personal service, or service by registered post.

37. If the ICAC choose to use registered post the provisions of section 8 of the Interpretation and General Clauses Ordinance apply, and are not overwritten by section 2(1) of that Ordinance. The answer to the magistrate here is "Yes, you did err".

38. On the second question. I am also with the Secretary for Justice. The authorities cited make it clear that all the prosecution need prove is that the registered letter arrived at the address to which it was sent. If it proves undeliverable in the sense that no one at that address takes it into their physical possession, and the post office themselves - and I stress, themselves - retain it in their possession and return it to the sender, as was the case in FOK Chun-hung, then I accept it has not been served. But that is not the case here. A woman, whose identity is unknown, at the address took it into her possession. Its subsequent return to the post office was through the hands of an unknown person. But clearly on the facts as found by the magistrate, that person was not an employee of the post office.

39. I do not believe that the magistrate's second question can be answered with a simple "Yes" or "No" answer. Each case depends on its own facts. Neither do I believe that it is helpful to introduce the concept of a receiving act. However, where there is evidence, as there is here, that the notice has passed out of the possession of the post office into the possession of another, that is more than sufficient evidence to invoke the section 8 Interpretation and General Clauses Ordinance presumption that service of the notice has been effected.

40. As to the third question, the first question in the third question is answered already. Both the Secretary for Justice and the respondent agree that the section 8 Interpretation and General Clauses Ordinance presumption, is rebuttable. The burden of rebutting it is on the party against whom the presumption operates, and the standard of the proof is, whenever in criminal proceedings a burden is cast upon a defendant, the civil standard of the balance of probabilities.

41. As to the second question in question 3. On the facts as found by the magistrate, had he applied his mind to the issue correctly, the only finding he could have made was that the respondent had not rebutted the presumption.

42. The notice was sent to his last known address. He led no evidence before the magistrate that the address at Clovelly Court was not his. The notice was taken in by a woman who was present at that address. The notice was put in a post box by human hand. Documents do not teleport themselves into post boxes.

43. The chain of events which led to it being put in the post box must have originated in the respondent's address. The envelope bore a specific statement, "We refuse to accept this letter, ('letter' deleted), service. Please return it to sender.". The only inference to be drawn from that is that the author, or the instigator, of that statement was aware that the envelope contained a notice and one which they did not want to accept. The only person who would be concerned about that must be the subject of the notice, the respondent himself.

44. Here I am satisfied the magistrate erred. And the answer to the second question in the third question in the case is, "Yes, you did err. There was no evidence capable of rebutting the presumption."

I/we certify that to the best of our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings

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B. Pirie Date: 15 October, 1998